ZONING HEARING BOARD
MINUTES – JANUARY 18, 2005
The regular meeting of the Zoning Hearing Board of the
Zoning Hearing Board: Barbara Kirk, Chairman
Rudolph Mayrhofer, Vice Chairman
David Malinowski, Secretary
Paul Bamburak, Member
Others: Nancy Frick, Director Zoning, Inspection & Planning
Robert Habgood, Code Enforcement Officer
Tim Duffy, Township Solicitor
Drew Wagner, Township Engineer
Allen Toadvine, Zoning Hearing Board Solicitor
Steve Santarsiero, Supervisor Liaison
Greg Caiola, Zoning Hearing Board Alternate (not
APPEAL #04-1254(A) – JOHN C. MCGINN, J.C. MCGINN CONSTRUCTION COMPANY
Ms. Kirk had marked as Board’s Exhibit 1 the letter dated January 18, 2005 directed to
Mr. Toadvine from Mr. John VanLuvanee, the Applicant’s attorney, requesting that the
Hearing be continued to the Hearing of February 15, 2005 and indicating that the
Applicant is granting an Extension to the Zoning Hearing Board through March 1, 2005
to hold the Hearing.
There was no one present to discuss this matter this evening. Ms. Kirk asked if any
members of the audience were present to listen to this Application, and two individuals
present this evening were advised that if the Board grants the request, this matter will be
continued to 2/15/05 and there will be no further notice published or advertised about the
Mr. Malinowski moved, Mr. Mayrhofer seconded and it was unanimously carried to
approve the request for continuance until 2/15/05.
January 18, 2005 Zoning Hearing Board – page 2 of 22
APPEAL #04-1296 – SAM VIRGILLO
Mr. Sam Virgillo was present. Ms. Kirk stated it was brought to her attention that the
property was not posted advertising tonight’s Hearing. Mr. Habgood stated they did not
receive any proof of public posting. He did not go out to the property to see if it had been
posted. Ms. Kirk asked how they knew it was not posted, and Mr. Toadvine stated the
posting notices were returned to the Township. Ms. Kirk stated she will provide to
Mr. Virgillo this evening the paperwork that the Township mailed which was sent by
Certified Mail and returned as undelivered after three attempts. Mr. Virgillo stated he did
not receive any notice that any Certified Mail was sent to him. Ms. Kirk stated he would
have to contact the Post Office about this. Mr. Toadvine showed the posters which were
to be posted conspicuously at the property. He stated it is mandated by the MPC that the
property be posted and the Application is advertised. This must be done prior to the
Hearing. Because the property was not posted, it was not properly advertised as far as the
law is concerned.
Mr. Virgillo stated he did receive notice that letters were sent out to the adjacent property
owners. Mr. Toadvine stated letters were sent to the neighbors, and it was advertised in
the newspaper; but because the property was not posted, they cannot conduct the
Hearing. He stated he will have to post the property, and the matter will be heard at the
February 1, 2005 meeting. Mr. Virgillo stated he would not be available on February 1.
Ms. Kirk noted if they wait until February 15, there will be a problem because the
Application was filed on December 14 which would put them outside the sixty day
requirement. Mr. Virgillo would have to agree to waive the time limits that requires the
Board to hold a Hearing within sixty days of the filing of the Application, and Mr.
Virgillo agreed to do so.
Mr. Bamburak noted the Posting indicates the meeting will be held on January 18, and
Mr. Toadvine changed these to read February 15.
Mr. Malinowski moved and Mr. Bamburak seconded to continue the Hearing to February
There was not one present to listen to this matter this evening. The Motion to continue
APPEAL #04-1291 – DR. GERALD L. & JANET E. SNEAD
Mr. William Bolla, attorney, was present and stated he is representing Dr. Snead and his
wife who are requesting an accessory office pursuant to a Special Exception. He stated
they feel they have met all the criteria necessary for the Special Exception. He stated he
will also ask the Board to consider the buffer requirement under Section 200-73C6. He
January 18, 2005 Zoning Hearing Board – page 3 of 22
stated there is an existing non-conformity which they would ask be recognized with
regard to the buffer yard requirement; however, the buffer yard requirement can be met
and they would ask for reasonable consideration as to the length as it is a very long
narrow property, just slightly over three acres. If there is a buffer requirement, they
would ask that it be limited to the area between the proposed parking and the adjoining
Dr. Gerald Snead was sworn in.
Ms. Kirk asked that the Application that was submitted be marked as Exhibit A-1.
Attached to that is a site plan prepared by Gibson Associates dated 10/19/04 consisting of
three sheets. This was marked as Exhibit A-2. As part of the Application, the Board
received a memo from the Planning Commission dated 1/11/05 indicating that this matter
was brought before the Planning Commission on 1/10/05 at which time, they
recommended approval of the Special Exception. This memo was marked as Exhibit
Dr. Snead stated he resides at
for twenty years.
Presently he practices in the
property in January, 2001 from Dr. William McKenna. He noted the 790’ square foot
portion of the property which had been used by Dr. McKenna previously as a physician’s
office. It is on the right hand side of the house. The property does accommodate two
driveways – one for the residence and one for the office which includes parking as well.
The second driveway is on the east property line. This was used for the previous doctor’s
office. Dr. Snead stated he will only use the same 790 square foot area that as previously
used by Dr. McKenna.
There was discussion on Dr. Snead’s current normal hours of operation which are
Monday to Thursday from 11:00 a.m. to 8:00 p.m. and Tuesday and Wednesday from
8:00 a.m. to 5:00 p.m. He occasionally has emergency services provided at other times.
He will keep the same hours of operation at this proposed new location.
Dr. Snead stated he has three full-time employees, one of whom is his wife and two part-
time employees. He stated his wife is a dental hygienist and works in the office two days
a week. He also has a full-time dental assistant who works all of the hours the practice is
open. He also has a receptionist but she does not work the evening hours. The other
part-time employee works as a receptionist in the evening. Mr. Bolla stated it would
appear that he really has two full-time employees – himself and his chair-side as well as
his wife who works two days a week as a part-time employee and two employees sharing
one job as receptionist. Dr. Snead agreed.
January 18, 2005 Zoning Hearing Board – page 4 of 22
Exhibit A-2 (Site Plan) was noted which was prepared by the architect, Keith Gibson of
Gibson Associates. The Zoning Conformance schedule set forth in A-2 was noted
including a calculation for the area of the existing structure and the office. Dr. Snead was
asked and noted that he resides in the home with his wife and son. Mr. Bolla asked if Dr.
Snead was aware that the architect calculated the square footage of the entire residence
consistent with the definition of floor area in the Zoning Ordinance, and Dr. Snead
agreed. Mr. Bolla stated he did not include the basement in the calculations, and
Dr. Snead agreed. Mr. Bolla stated under his reading of the Ordinance he feels he could
have included this, and Dr. Snead agreed. Mr. Bolla asked if he measured the existing
area that had been used by Dr. McKenna, and Dr. Snead agreed. The numbers shown on
Exhibit A-2 show that the total square footage of the property excluding the basement is
3,490 square feet and the area for the office is 790 square feet. Dr. Snead stated the
garages were not included in the calculations.
Mr. Bolla asked if Dr. Snead will make any changes to the exterior of the property that
would impact on the nature of the neighborhood, and Dr. Snead stated he will not. He
stated he will place a sign consistent with the Zoning Ordinance.
Dr. Snead stated he did receive notice of the meeting and he did post the property on the
east and west ends of the property on
lamppost and a reflective marker. They have been up since Tuesday of last week and are
Mr. Bolla asked if he plans any exterior display of any kind, and Dr. Snead stated he does
Mr. Bolla asked if he is aware that the terms of the Zoning
collector road, and Dr. Snead stated he is aware of this.
Mr. Bolla stated Dr. Snead has agreed to provide, and the Plans show, a total of six off-
street parking spaces, two of which will be at the exterior of the garage although he could
also park inside the garage; and Dr. Snead agreed. There are four parking spaces
dedicated to the office use, one of which is a handicap size parking space. It was noted
that this is shown on A-2.
Dr. Snead stated he is not selling any other good or commodities on the property other
than the dentistry practice.
Mr. Bolla asked if the driveway located on the eastern boundary line was already in
existence when Dr. Snead purchased the home, and Dr. Snead stated it was. The distance
between the driveway and edge of the property is 5’. Between himself and his adjacent
residential neighbor there are currently trees, some of which are very mature. Dr. Snead
estimated the approximate width of some of the trees and shrubs is currently 5’.
January 18, 2005 Zoning Hearing Board – page 5 of 22
Mr. Bolla asked if there is sufficient space to provide 12’ of buffer if required, and
Dr. Snead stated there is. He would propose to do this in the area defined by the northern
edge of the parking extended to the front edge of the building. Ms. Kirk asked if he had
to provide this buffer, would he remove the existing trees and shrubs along the property
line between the office driveway and the adjacent residence, and Dr. Snead stated he
would not – he would supplement it.
There was no public comment.
Ms. Kirk moved and Mr. Malinowski seconded that the request for a Special Exception
for Tax Parcel #20-49-34 for a Class 4 Home Occupation pursuant to Section #200-
20B10 and Section #200-69A10 be granted with the condition that the normal hours of
operation be limited to Monday and Thursday from 11:00 a.m. to 8:00 p.m. and Tuesday
and Wednesday from 8:00 a.m. to 5:00 p.m. with no normal Friday hours. Further that
the buffer requirement as set forth in Section 200-73C6 be waived due to the existing
non-conforming condition of the property.
Mr. Mayrhofer asked why should he be restricted to these hours. Ms. Kirk stated there
was sworn testimony that these were the hours he would operate. Mr. Mayrhofer asked if
this was satisfactory to Dr. Snead; and Dr. Snead stated this is what he has been working
at his other office for the last ten years, and he does not have any plans to change them.
Motion carried unanimously.
APPEAL #04-1293 – KRISTINE/KEVIN WOJNOVICH
Ms. Kirk stated this matter was continued from January 4, 2005. Mr. Kevin Wojnovich
was present and was reminded that he was previously sworn in and is still under oath.
Ms. Kirk stated following the last Hearing on this matter, Mr. Wojnovich submitted an
amended Application dated 1/7/05. This was marked as Exhibit A-3. She stated in that
amended Application Mr. Wojnovich indicated that he is withdrawing the request for a
Variance to exceed the height requirement of fifteen feet, and Mr. Wojnovich agreed.
Ms. Kirk stated he has also modified the request for impervious surface. She noted
currently they are at 19.5% impervious surface coverage without the she; and he is
requesting that if he is permitted to install the 160 square foot shed, he would agree to
still meet the 19.5% impervious surface that currently exists by removing impervious
surface somewhere else on the property. Mr. Wojnovich stated they would take out
approximately 190 square feet from the front walkway so it would actually reduce the
impervious surface by .1 or .2. Mr. Toadvine stated the impervious surface coverage
would then not be any greater than it is currently which is 19.5%.
January 18, 2005 Zoning Hearing Board – page 6 of 22
Mr. Edward Kimble, 1804 Westover, was sworn in. He stated he still objects to the
current revised Plan. While it is a smaller building, it is not as small as stated at the
previous meeting which was 12’ by 12’. Mr. Kimble stated this neighborhood is built on
two slopes, and the water flows down Westover northward and east to the Canal and
covers all the property that adjoins
streams. He stated this property has already received one Zoning Variance at the time the
property was built, and they question how many Variances should be granted for one
property. He stated the removal of the front walk and trading it for the impervious
surface that will occupy the proposed structure is not a viable alternative because he is
moving impervious surface from the front of the house to the back where it is closest to
the neighbors and further away from the house at 101 Ovington. He does not feel this is
fair. He stated the original proposal mentioned silt fences and these are still in the
proposal and they question whether this is a viable solution; and if they do not work what
would be their recourse. He asked if the drainage trench is still in the new plan. He
showed a photograph showing the property which shows that this property is elevated by
a considerable degree to that of its neighbors. Because of this, water run off from the
shed roof and into the trenches and silt fencing will have a higher hydrostatic pressure
than if the grounds were level to one another. He questions whether this will cause
subterranean erosion and go onto adjoining properties. He questions if an environmental
impact statement has been written or if the Township engineer has looked at this and
decided whether this will have an impact on neighborhood properties. He stated there was
discussion about landscaping to conceal the structure, and this is not noted on this Plan.
Mr. Kimble stated they question why this shed cannot be moved closer to the house or
attached to it which would move the water problem away from the neighbors and closer
to the house itself. Mr. Kimble asked why the shed could not incorporated into the
open porch already shown on the property. This would minimize the impervious surface
even further. He also asked if the railroad ties will remain in tact and they have not
received an answer on this. He stated if these are removed, they are concerned it will
loosen the slope and cause further erosion. He stated he feels there were put in when the
property was built for a reason. Mr. Wojnovich stated he installed them. Mr. Kimble
stated they feel the environmental integrity of the adjoining properties should not be
adversely impacted so that the neighbors who have resided there for ten to twenty years
will not have to suffer a hardship because of eroded property, water in their basement,
and reduction in property values.
Mr. Barrett Levine,
there for over thirty years and is downhill from
many water problems over the years . Half of his water comes from
As the intensity of the flow increases, he passes this onto his neighbors and this has
resulted in water problems for them. He stated Mr. Coyne is aware of the numerous
times he has had to rebuild storm sewers in Westover because of the intensity of the
water flow. He feels any change in the drainage area is out of line.
January 18, 2005 Zoning Hearing Board – page 7 of 22
Ms. Molly Mitchell,
abuts this property slightly to the left. She stated there are water and drainage issues in
the neighborhood. She asked if there is any requirement for an engineer’s analysis of the
request of Mr. and Mrs. Wojnovich so that these issues of possible impact on neighboring
properties could be answered by a professional as opposed to speculation. Mr. Toadvine
stated there is no requirement that the Township engineer to do this type of study for this
particular Application although it may occur in some other situations. Ms. Mitchell
asked if the Township were to grant this request, what recourse would the neighbors have
if indeed there were impacts from this type of change. Mr. Toadvine stated the Zoning
Hearing Board is dealing with a request which is in fact not technically a Variance
request at this point because the Applicant has withdrawn the request for the excess
height and has agreed that the impervious surface on the property will at least remain the
same and could possibly decrease. As far as any implications of run off, they would not
be dealt with by this Board, but may be a private cause of action. Ms. Mitchell asked if
there is any way to determine whether even though the impervious space at this point
remains the same or is slightly less, there is any way to determine whether removal of
impervious surface for the front is a reasonable exchange for increasing impervious
surface in the back. Mr. Toadvine stated the Zoning Hearing Board would not analyze
the quality of the impervious or the pervious surface. It is a numeric calculation.
Ms. Kirk stated at the last Hearing, Mr. Wojnovich indicated he would provide a berm
and a drainage trench and silt fence as shown in A-2 and asked if he will still provide
this. Mr. Wojnovich stated he will. Mr. Wagner stated the silt fence is shown on the plan
as an erosion control. The Plan does not show the location, size, etc. of the infiltration
trench and they could be required to size this to the satisfaction of the Township engineer.
Mr. Wagner explained the way they install an infiltration trench. Mr. Bamburak asked
who will determine if this is needed, and Mr. Wagner stated it could be put on as a
Stipulation. Mr. Wojnovich stated these are shown on the Plan in case there is a problem.
Mr. Bamburak asked if they can stipulate that a professional engineer has to draw the
plans and seal them. As this was a legal question, a short recess was taken at this time.
The meeting was reconvened.
Ms. Kirk moved, Mr. Bamburak seconded and it was unanimously carried that in the
matter of Kristine and Kevin Wojnovich for the property
that the Application to construct a 160 square foot shed be granted with the understanding
that sufficient impervious surface coverage elsewhere on the property be removed so that
the current impervious surface will not increase based upon the construction of the shed
as set forth in the amended Application.
January 18, 2005 Zoning Hearing Board – page 8 of 22
APPEAL #04-1282 – MIKE AND BARB GRAFELD, ETAL
Mr. Stephen Goldstein, representing the Applicants, and Mr. Michael Klimpl,
representing the property owners were present. Ms. Kirk stated this Hearing was opened
at a previous meeting of the Zoning Hearing Board on November 3 and Exhibit A-1 was
marked which was the Application that was submitted. Ms. Kirk asked how many people
Mr. Goldstein plans to have testify, and Mr. Goldstein stated he has two witnesses but
others may wish to speak as well. Ms. Kirk stated his clients should understand that the
Board would not need to hear repetitious testimony or statements. Mr. Goldstein stated
he has advised them of this. Ms. Kirk asked how many witnesses Mr. Klimpl intends to
call, and he stated he will call Mr. Vogel, the property owner, and Ms. Nancy Frick.
Ms. Kirk asked if the Township was party to this action, and Mr. Duffy stated they are
only present representing Ms. Frick who is a subpoenaed witness, and the Township does
not have a position on this Appeal.
Mr. Goldstein stated this case involves the issuance of a Permit by the Township for
replacing a fence with a six foot high fence as indicated on the site plan at the property at
issued in error. He stated it is an unusual situation because one would not expect an error
to be made regarding the issuance of a Permit, but they feel one was made in this case
and this is why they are seeking relief.
Ms. Kirk stated previously they discussed the issues that were before the Board including
the timeliness of the Appeal, the issue of having the Hearing within 60 days, and the
merits of the case. Mr. Goldstein stated he would like to discuss the merits of the case
first and then discuss the other items.
Ms. Kirk stated a copy of the Building Permit dated 6/10/04 was included as part of the
original paperwork submitted. This makes reference to a site plan, but such a Plan was
not included in the packet. Ms. Frick stated the only thing they received in the
Application was a copy of the permit. Mr. Toadvine stated he felt it would be beneficial
for the record if they had the actual permit with the site plan that was submitted with the
permit application, and Ms. Frick stated she does have this. Copies were made available
this evening and a copy was provided to the Zoning Hearing Board. A-2 was marked
which is a photo copy of the Building Permit which is dated 6/20/04 and two site plans
that were attached to the Building Permit at the time that it was submitted, both site plans
have yellow highlighting, and Ms. Frick has highlighted the two plans in yellow, and it is
substantially the same as the highlighted provisions filed by Mr. Vogel. This was marked
January 18, 2005 Zoning Hearing Board – page 9 of 22
Mr. Goldstein called Mr. Brendan Monaghan who was sworn in. Mr. Goldstein offered a
site plan that is a copy of the site plan that is recorded
Subdivision. Mr. Monaghan stated he did obtain this from the County. The site plan
was marked as A-3 and this was provided to Mr. Toadvine. Mr. Goldstein stated this is
the Final Subdivision Plan.
Mr. Toadvine stated this is a Final Plan of Mirror
Farms dated 3/1978, sheet 1 of 37 prepared by Tri State Engineers and Land Surveyors.
Mr. Goldstein admitted a blow up of the particular corner of
adjoining property. This is a blow up of the site plan just submitted and was marked as
Mr. Klimpl asked is Mr. Monaghan’s signature is shown on Exhibit A-1, and
Mr. Monaghan stated it is. Mr. Klimpl asked if Ruth Ann Boylan is his wife, and
Mr. Monaghan stated she is.
Ms. Ruth Anne Boylan-Monaghan was called and sworn in. Ms. Boylan stated she is one
of the group that brought the Appeal. Ms. Boylan noted a picture that was part of the real
estate packet when the house (
obtained this from the open house. Mr. Goldstein asked that this be marked as Exhibit
A-5. Mr. Goldberg showed Ms. Boylan three sets of pictures, one showing the front
taken from the corner of Harvest and Combine, one looking at
is the adjacent property, and one taken from inside
Ms. Boylan stated she took these photos on 8/2/04. These were marked as Exhibits A-6,
A-7, and A-8. Mr. Goldstein stated A-6 is the view of the corner, A-7, the view of 814
Combine Lane, and A-8 is taken from inside
Ms. Kirk stated each of the Zoning Hearing Board members has been by the property and
are aware of the fence and the condition that it is in currently. Ms. Kirk asked if it is
correct that the property is a corner property with the front of the house facing on Harvest
Drive and a side on
Mr. Klimpl stated at some point they were aware this fence was going up and Ms. Boylan
stated she became aware of it the day it went up in the end of June. Mr. Goldstein stated
Mr. Klimpl is probably addressing the timeliness issue and he would like to present his
case on the merits first and then address the timeliness. Ms. Kirk stated as they have
presented the merits, Mr. Goldstein now go into the timeliness and offer any other
Exhibits and then Mr. Klimpl will be afforded the opportunity to cross examine. Mr.
Mr. Goldstein stated his last Exhibit is a series of four pages taken from the Zoning
Ordinance which he collectively called Exhibit A-9. Mr. Toadvine suggested that the
Board’s attention be directed to this since the Zoning Ordinance is obviously in front of
everyone. Mr. Goldstein stated he does have copies of the pages involved. Mr. Toadvine
stated they do not need to be marked as an Exhibit. Ms. Kirk asked the Sections
January 18, 2005 Zoning Hearing Board – page 10 of 22
involved, and Mr. Goldstein stated they are 200-7 on Page 20015, Section 200-22 on
Page 20027, Section 200-61 on Page 20072.1, and Section 200-6914(c) on page 200111
dealing with fences and walls.
Mr. Goldstein stated the first page of the Zoning Ordinance that was submitted and
marked as Page 20115 is from the Definition section of the Ordinance. Mr. Klimpl asked
if this is closing or statement, and Ms. Kirk stated this is clarification of what was
submitted. Mr. Goldstein stated there is a definition of what is a front yard. The second
page submitted shows what the front yard is for this particular property which is a
subdivision with one acre lots. The third page talks about corner lots and what rules
apply with respect to corner lots in terms of a lot which has frontage on two streets which
they submit is this particular lot in question which has
Harvest. Section 200-6914(c) talks about fences and front yards and essentially
concludes that the maximum height of a fence in the front yard can be three feet and by
definition from the prior page, this is a corner lot which has two front yards. He feels in
this case this is the Ordinance and it seems that the Board can take notice of the
provisions of the Ordinance that this is a corner lot with two front yards and a permit was
issued for a fence of six feet which appears to be in clear contradiction of the provisions
of the Zoning Ordinance and this is what this case is about.
Mr. Toadvine asked if they can stipulate that the fence that is depicted in the Exhibits is
six feet in height, and this was agreeable to all present.
Mr. Goldstein stated Mr. Klimpl raised the question about when Ms. Boylan first
discovered the fence was going up and he asked what happened during the period of time
following the discovery of the fence. Ms. Boylan stated on June 24, 2004, the fence
started going up. She stated they stopped by the Zoning Office the following day to look
at the Permit. They had some questions and they were not satisfied with the answers.
She went home and in the next few days she reviewed the Zoning Code and revisited the
Zoning Office in the middle of the following week either Wednesday or Thursday with
specific questions about the Zoning Code and the permit as it was issued. She stated the
Zoning Officer she spoke to was not able to answer her questions specifically with regard
to the definition of the building setback line that was in the drawing, the language in the
Zoning Code that talked about the definition of a front yard, and when she presented the
page of the Code that she had printed off the Website, and asked the Zoning Officer to
answer questions about it, she stated she could not.
Ms. Kirk asked if this was Sally Dorner, and Ms. Boylan stated it was Ms. Frick.
Ms. Kirk stated Ms. Frick is the Director of Building and Planning and Sally Dorner was
the Code Officer at that time, and Ms. Frick stated this is correct.
Ms. Boylan stated she was confused why Ms. Frick could not answer her questions about
the Zoning Ordinance. She asked her to clarify her position, and she was told she was the
January 18, 2005 Zoning Hearing Board - page 11 of 22
Director of Zoning. She asked if there was anyone beyond her who might have more
knowledge of the Zoning Code, and Ms. Frick stated she was the Director of Zoning and
reported to Terry Fedorchak. Ms. Boylan stated she questioned what the process in the
Township was for appealing a Permit, and Ms. Frick advised she did not know what it
was because she was not aware of any permits being appealed. Ms. Boylan stated she
then left the office. Ms. Boylan stated Ms. Frick did offer to speak to the Township
Solicitor to see what he would suggest and the Office did call Ms. Boylan later in the day
advising there was a packet of paperwork she could pick up. She picked it up and called
the office several times with questions but was unable to connect with Ms. Frick to get
her questions answered.
Ms. Boylan stated at that point she was not confident that the issue could be Appealed
and she dropped any intention of doing any follow up until her neighbors called her to see
what kind of result she had with the Township Office. She stated she feels several other
people had questioned some things and did not seem to be satisfied with their responses
and a group of neighbors got together and decided to file the Appeal. She stated what
they originally decided was to escalate the issue to Terry Fedorchak.
Mr. Goldstein asked what papers they asked Ms. Boylan to pick up, and Ms. Boylan
stated it was the pack of paperwork that talked about appealing the permit. Mr. Goldstein
asked at any time when she was in the Township Office and picked up the paperwork, did
anyone indicate that there was a deadline that had to be met in order to file the Appeal,
and Ms. Boylan stated she had no conversation with anyone in the Township office about
a deadline until they got to Terry Fedorchak and requested a meeting with him. She
stated this meeting took place on August 2.
Mr. Klimpl asked if Ms. Boylan signed the Appeal, and Ms. Boylan stated this is correct.
Mr. Klimpl asked about her first visit to the Township, and Ms. Boylan stated the first
time she visited was Friday, June 25. She did go home and review the Zoning Code
which she got on-line. She stated she was able to print sections of it. She reviewed
information specifically on side yards, front yards, and the section that talks about fence
height limitations. When she came in the following week, she did obtain a copy of the
Building Permit that was issued. This was on either June 30 or July 1. Mr. Klimpl asked
if she reviewed any sections regarding Appeals, and Ms. Boylan stated she was told by
Ms. Frick that there was no Appeal process. She stated when she was in the office on
June 30 or July 1 she asked what the process was the Township had in place to appeal or
challenge a Permit, and Ms. Frick advised that she had never had a permit appealed or
challenged and that she did not know what the process would be but that she would talk
to the Township Solicitor to find out. Mr. Klimpl asked if she did advise her of the
process, and Ms. Boylan stated the secretary called her and Ms. Boylan did then pick up
the packet of paperwork which included the Appeal forms. Mr. Klimpl stated it appears
the Appeal form was not filed until August 11. Ms. Boylan stated when the Secretary
called, she did not exactly explain what the paperwork was. Mr. Klimpl stated the
question is did she sign the Appeal on August 11, 2004, and Ms. Boylan stated she did.
January 18, 2005 Zoning Hearing Board – page 12 of 22
Mr. Klimpl asked that the receipt that was provided to him from Ms. Frick be marked as
Exhibit V-1. Mr.
Toadvine stated this is a one-page document entitled
Township Record Information Request form and there appears to be a date stamp of
July 1 of 2004. This was agreed to by all present. Mr. Klimpl noted the request for the
permit, and Ms. Boylan stated she did request this.
Mr. Boylan asked about the meeting with the Township Manger, and Ms. Boylan stated
the first time they met with him was August 2. Mr. Klimpl asked about their
conversation with Mr. Fedorchak, and Ms. Boylan stated they met with him as a group of
neighbors to talk about the processing of the permits and the review of the permit.
Mr. Klimpl asked the results of the meeting. Ms. Boylan stated he suggested that they
submit a letter to the Township indicating the community group intended to appeal and
suggested a follow-up meeting with him. Mr. Klimpl asked if she had shown any of the
neighbors the Zoning Ordinance sections or advised them out to get them on-line, and
Ms. Boylan stated does not feel she did.
Mr. Goldstein stated Ms. Boylan indicated the Secretary called her, and he asked if
Ms. Boylan spoke to her or if she left a message. Ms. Boylan stated she left a message
when she called about the paperwork. The Secretary said that Ms. Frick had followed up
with the Township Solicitor and there was paperwork there that she should pick up.
Mr. Klimpl asked if this paperwork included information on Appeals, and Ms. Boylan
stated it did.
Mr. Toadvine asked the date she picked up the Appeal forms, and Ms. Boylan stated it
was July 1 – the same time she picked up the copy of the Permit. She had seen the permit
previously on June 25. Mr. Toadvine stated the Application was signed on August 11,
and Ms. Boylan stated this is correct. Mr. Toadvine asked if it was filed on that date.
Ms. Boylan stated she believes it was notarized on August 11 and filed on August 12
with the Township. Mr. Toadvine stated that on Exhibit A-1 there is a date stamp of
September 8, 2004, and asked if all would agree that this is correct. Mr. Goldstein stated
he does not have a copy of this. A copy of the original was shown to Mr. Goldstein.
Mr. Goldstein stated he will agree that the Township placed the date stamp on the
Application that says September 8. Mr. Toadvine asked if the document was filed on
August 12, does she know why it would be date stamped September 8. Ms. Boylan
stated when they had the conversations with Mr. Fedorchak, he suggested that they get
the paperwork filed. Because it was a neighborhood appeal and they were concerned
about having to collect money from the neighborhood to submit the $500 with the
Appeal, he suggested getting the paperwork notarized and on file with the Township as
quickly as they could with or without the money. Mr. Toadvine stated she is now
indicating that when they filed it in August, they did not pay the Application fee, and
Ms. Boylan stated this is correct. Mr. Toadvine asked if the Application fee was brought
in at a later date. Ms. Boylan stated the Township called on August 30 and asked that
January 18, 2005 Zoning Hearing Board – page 13 of 22
they submit the fee. Mr. Toadvine asked if would be fair to assume that the fee was
submitted on September 8 and this is why it is date stamped on that date. Ms. Boylan
stated the fee was dropped off on September 3 and she has a receipt to that effect.
Ms. Kirk asked what day September 3 was, and Ms. Boylan stated it was the Friday
before Labor Day. Ms.
Frick stated Monday was a
September 8 is the Tuesday after Labor Day, and Ms. Frick stated it was Wednesday after
Labor Day. Mr. Goldstein asked what time the fee was dropped off, and Ms. Boylan
stated her husband dropped it off.
Mr. Duffy stated Ms. Boylan indicated that when she met with Ms. Frick there were
questions which were not answered to her satisfaction and he asked what the questions
were. Ms. Boylan stated she was concerned that the fence was built along the front of the
property line of
the Code that talked about the definition of front yard and the building setback line.
Ms. Boylan stated she pointed to the building setback line in the drawing of the Township
development Plan and asked if this building setback line defines the front yard for the
property and Ms. Frick indicated yes. Ms. Boylan asked how the building setback line
when it runs through both properties is interpreted by the Code, and Ms. Frick asked
“What Code.” Mr. Boylan noted the “Zoning Code,” and Ms. Frick stated “How would I
know, I didn’t write that.” Ms. Boylan state this conversation was on July 1. Mr. Duffy
asked about the conversation on June 25, and Ms. Boylan stated they were not satisfied
with the answers she gave at that meeting specifically concerning the front yard that the
Mr. Duffy stated at one point Ms. Boylan stated Ms. Frick told her there was no appeal
process but previously Ms. Boylan indicated that she stated she did not know that there
had ever been one. Ms. Boylan stated Ms. Frick told her that there had never been a
permit appealed that she knew of, and she was not familiar with what the process was.
Mr. Duffy stated Ms. Frick did not tell Ms. Boylan that there was not a process, and
Ms. Boylan stated Ms. Frick told her she did not know what it was. Ms. Boylan stated
maybe she assumed that there was none if the Zoning Officer did not know what it was.
Mr. Duffy stated Ms. Boylan gave testimony that Ms. Frick told her that there was not a
process and asked if this testimony is now incorrect. Mr. Duffy asked if Ms. Frick told
her that there was no appeal process, and Ms. Boylan stated she honestly did not
remember what her exact words were but she was left with the impression that there was
no process. Mr. Duffy asked if Ms. Frick told her not to Appeal, and Ms. Boylan stated
she did not. Mr. Duffy asked if Ms. Frick told her not to get an attorney, and Ms. Boylan
stated she did not. Mr. Duffy asked if Ms. Frick or someone in her office give
Ms. Boylan the forms that say “Notice of Appeal”, and Ms. Boylan stated she did.
January 18, 2005 Zoning Hearing Board – page14 of 22
Mr. Brendan Monaghan was recalled. Mr. Monaghan was asked about the $500 fee for
the Zoning Appeal, and Mr. Monaghan stated he did drop this off at the Township on
Friday, September 3 right before Noon. He stated he dropped off the money to
Ms. Frick. The copy of the receipt was shown, and Mr. Monaghan stated this is the
receipt he has.
Mr. Goldstein stated he has no further witnesses.
Mr. Klimpl called Ms. Frick who was subpoenaed and was sworn in. Ms. Klimpl asked
if Ms. Frick recalled Ms. Boylan coming into the Township in late June/early July, and
Ms. Frick stated she does and there is a memo to this effect in her file. Mr. Klimpl asked
her to summarize the visit she had with Ms. Boylan. Ms. Frick stated there were
numerous visits. She can read her notes from the file because there were so many
residents who came into the office or called many times regarding this matter. Ms. Frick
noted the memo to file dated 7/1/04: Nancy Frick has received several calls regarding the
permit issued for a fence at the property at
much time on the phone and at the counter regarding discussions of the Zoning Code
with regard to two front yards, placement of the fence, etc. Ms. Marianne Smith called
on 6/29 and 6/30 and also made contact again on 7/1 and Ms. Frick spent approximately
fifteen minutes on the phone. In the interim another resident, Ms. Boylan, came in and
asked to see the file and meet with Ms. Frick. Ms. Frick was involved with the phone
conversation and had an individual waiting to meet with her and Ms. Joan Schlicker was
asked to have Ms. Boylan wait for approximately fifteen to twenty
finished her appointment in approximately twelve minutes and came to the counter to
discuss the issue with Ms. Boylan. Ms. Frick explained about the front yard and the
Township’s interpretation. Ms. Boylan wanted to know how to challenge the issuance of
the permit, and Ms. Frick stated she would have to contact the Township Solicitor as she
was not aware of that ever occurring in her time with the Township. Ms. Boylan stated
she found it was incredible that no one had ever challenged a permit and left somewhat
disgruntled with the Township. In the interim Mrs. Smith called back and questioned the
fence location. Ms. Frick called her back and discussed it further with her. Mrs. Smith
stated that she believed that there were deed restrictions of some kind and she was
advised she would need to contact Doylestown. Ms. Frick asked Ms. Schlicker to call
Ms. Boylan and advise her that according to the Township Solicitor anyone who wants to
challenge a permit with respect to Zoning would have to file an Appeal to the Zoning
Hearing Board and that there forms were available. Ms. Boylan advised that she felt the
forms were on-line but requested that they put them aside and she would pick them up
and pay for the copies.
Ms. Kirk asked the identification of Ms. Schlicker, and Ms. Frick stated she is her
January 18, 2005 Zoning Hearing Board – page 15 of 22
Mr. Klimpl asked about the last paragraph indicating that she asked Joan to call and have
Ms. Boylan pick up the forms, and asked what date was this done, and Ms. Frick stated it
was the exact date that Ms. Boylan came in – July 1. She stated this all occurred from
11:00 a.m. to 4:30 p.m. on July 1, 2004. Ms. Boylan did in fact pick up the forms.
Mr. Klimpl noted Exhibit A-2, the Application with the yellow highlighted sketches of
this fence. He stated this was part of the Permit Application, and Ms. Frick agreed.
Mr. Klimpl stated this permitted a six foot fence to be constructed as highlighted in
yellow. Mr. Goldstein objected. Ms. Kirk asked that he re-phrase. Mr. Klimpl asked
what the yellow indicates on the two sketches that are part of the permit, and Ms. Frick
stated it is the proposed location of the fence. The permit was for a six foot fence.
Mr. Klimpl asked if the fence was constructed in accordance with the permit, and
Ms. Frick stated it was to the best of her knowledge. It did permit the six fence to be in
the setback area between Combine and the Vogel residence. Ms. Frick stated it was
approved by Sally Ann Bellaspica on 6/2/04.
Mr. Klimpl asked about Ms. Frick’s interpretation of the lot as far as one front yard and
one side yard. Mr. Duffy objected. Mr. Klimpl asked her interpretation of the property
as far as side yards and front yards. Ms. Frick stated the front yard is determined by how
the house is set. Mr. Klimpl asked how the house at issue is set. Ms. Frick stated it
are similar lot configurations in the Township, and Ms. Frick stated there are. Mr. Klimpl
asked if Ms. Frick has had occasion to interpret the Ordinance and determine the
issuance of various permits on those type of lots. Mr. Klimpl asked where there is a
home such as this configuration where the front door faces a street and the side of the
house faces a street, has it been her interpretation that the configuration presents one front
yard and one side yard, and Ms. Frick agreed. Ms. Frick stated she has issued permits to
this effect including fences for permits. Ms. Klimpl asked if she can recall the most
recent one issued, and Ms. Frick stated the last one was within the last two months.
Mr. Klimpl asked if there is any way she can estimate how many such permits have been
issued. Ms. Frick stated she signs every Building Permit that the Township issues
although she does not personally review them all for Zoning. She stated she has reviewed
many which were similar to this, but she could not state exactly how many.
Mr. Kirk asked Ms. Frick how long she has been the Manager of the Zoning and Building
and Planning Department of the Township, and Ms. Frick stated she has been so since
1984. She has during this time reviewed and signed building permits issued by the
Mr. Klimpl asked if she has a copy of the receipt for the $500, and Ms. Frick stated this is
in a different receipt book than the one for the Building Permits.
January 18, 2005 Zoning Hearing Board – page 16 of 22
Mr. Goldstein asked how long Ms. Frick has been an employee of the Township, and
Ms. Frick stated she has been employed by the Township since December of 1980.
She has been the Director of Zoning, Inspection & Planning since 1984. Prior to that she
was the Assistant and Code Enforcement Officer. She did not become the Zoning Officer
until 1992. She has been Director since 1984. She is still the Zoning Officer.
Mr. Goldstein asked if she is familiar with the Zoning Ordinance, and Ms. Frick stated
she is. Mr. Goldstein asked if she knows what a front yard is, and Ms. Frick stated she
does. Mr. Goldstein noted Section 200-61 of the Zoning Ordinance Paragraph A for
corner lots and the portion he has underlined which states a lot with frontage on two or
more streets including corner lots would have a building setback from each street not less
than the required front yard and asked what this means to her. Ms. Frick stated her
interpretation is a building setback line is for a building not for a shed, a fence, pool etc.
Mr. Goldstein stated a corner lot essentially for building setback purposes has two front
yards, and Ms. Frick stated she does not feel they have two front yards but the setback
would be not less than the required front yard.
Mr. Goldstein noted the next page regarding fences – Section 200-69A14(c) which is for
residential accessory buildings, fences and structures and sub-paragraph C notes fences
and walls. Mr. Goldstein stated it indicates fences and walls may be erected in the front,
rear, or side yard or the special setback subject to conditions. He stated it indicates the
maximum permitted height of any fence in a rear or side yard or in the special setback
would be seven feet but if you look at the underscored language which he underlined, it
states the maximum permitted height of any fence in a front yard shall be three feet where
a front yard overlaps either a rear or side yard or special setback, the height restrictions
for the front yard shall control. He stated with regard to the previous page she indicated
that when there is a corner lot, for the purposes of this determination, each of the sides
facing the street is deemed to be a front yard. Ms. Frick stated Mr. Goldstein indicated
this – she did not. Mr. Goldstein stated he feels the Ordinance says this.
Mr. Klimpl objected and Mr. Duffy objected. Mr. Klimpl stated he feels Mr. Goldstein
is becoming argumentative and they are now getting into legal arguments on the language
of the Statute. Ms. Kirk stated this objection is sustained. Mr. Duffy stated he objected
because the Ordinance speaks for itself and Mr. Goldstein was mischaracterizing prior
testimony. Ms. Kirk stated this objection is sustained.
Mr. Goldstein asked if Ms. Frick would agree that the Ordinance provides that the
maximum height of any fence located in a front yard is three feet, and Ms. Frick stated
Mr. Goldstein stated he imagines in her twenty-four years with the Township once or
twice Permits and Applications have been denied and people are advised that it is their
right to make an Appeal, and Ms. Frick agreed. Mr. Goldstein asked if she is aware that
people have thirty days to take an Appeal, and Ms. Frick agreed. Mr. Goldstein stated
January 18, 2005 Zoning Hearing Board – page 17 of 22
that when it came to the matter of appealing the issuance of the permit by the neighbors,
she did not state that they had thirty days to Appeal. Ms. Frick stated Ms. Boylan did not
ask this question. Ms. Frick stated she asked Ms. Boylan if she wanted to Appeal and
Ms. Boylan stated she did not want to Appeal and go to the Zoning Hearing Board.
Ms. Boylan stated she wanted to know how to challenge Ms. Frick’s decision. Ms. Frick
stated she advised her she had never had a permit challenged that she had issued.
Ms. Boylan stated she found this hard to believe. She told her she had never had this
happen and she would ask the Solicitor and call her back with his answer. Mr. Goldstein
stated no question was raised by her nor asked of Ms. Frick by anyone on the timing, and
Ms. Frick stated they had to determine what she was going for first.
Mr. Robert Vogel was called and sworn in. Mr. Vogel stated he is the owner of the
property in question. He has seen Exhibit A-2 which is the Building Permit and the
yellow highlighted portion. Mr. Vogel stated this is the manner in which his fence was
constructed. It is
six feet high. It sits approximately ten
It is approximately seventy-five feet from
Mr. Klimpl marked as Exhibit V-2 the memo that Ms. Frick read into the record this
evening. Mr. Goldstein had no objection. This was noted as a memo to the file from
Nancy Frick dated July 1, 2004.
Mr. Klimpl showed photographs which were marked as Exhibit V-3 and V-4 which show
the rear yard and the fence. Mr. Goldstein had no objection. Mr. Toadvine stated these
are two photographs of the rear yard of Mr. Vogel’s property.
Mr. Klimpl stated a permit for the fence was issued in June, 2004 and he asked when they
started construction. Mr. Vogel stated it started the third week in June. Mr. Klimpl
asked if various neighbors came over and take note of it, and Mr. Vogel stated they did.
He stated they moved into the house on June 19, and the fence was constructed after that
time. He stated there is also an internal fence and they put a safety fence between the
house and the swimming pool and this was not completed until the later part of June/early
Exhibit V-5 was marked which is the Home Depot receipt from July 3 for additional
hinges and bolts for locking the gates. Mr. Vogel stated the fence was complete at that
time. There was no objection to Exhibit V-5.
Mr. Klimpl asked if they had an opportunity to observe other fences in the neighborhood,
and Mr. Vogel stated he has in the Township. Mr. Goldstein objected. Mr. Klimpl asked
if he has had an opportunity to observe other fences in the Township, and Mr. Vogel
stated he has.
January 18, 2005 Zoning Hearing Board – page 18 of 22
Mr. Vogel noted photographs which were marked as Exhibit V-6 and V-7 and Mr. Vogel
stated these are pictures of other corner lots that have a fence similar to their lay out.
Mr. Vogel stated one is at Colt and
fence is approximately six feet in height. He did not go onto the property to measure it.
Mr. Goldstein had no objection. These are two photographs of the same lot.
Mr. Klimpl showed additional photographs which were marked as Exhibit V-8 and V-9.
Exhibit V-8 shows a property at Dolington and
fence on a property on the opposite corner of
Mr. Vogel stated he took these photographs. There was no objection.
Mr. Klimpl asked if the fence is fully up at this point, and Mr. Vogel stated it is and he
abided by all the terms and conditions imposed on the permit.
Mr. Goldstein asked when the fence started to go up, Mr. Vogel indicated he had
conversations with his neighbors, and asked what took place during those conversations.
Mr. Klimpl objected due to relevancy. Ms. Kirk overruled. Mr. Vogel stated
Mr. Lindner from
during the time the fence was being construed. He asked what they were doing.
Mr. Vogel explained that they were putting the fence up because they had three small
children and were putting in a play set. Mr. Lindner walked him to a different property to
show him a fence that he would be more in favor of that was on the corner of Combine
and Silo and asked if he would cut their side yard in half and even offered to pay for the
cost to so, and Mr. Vogel stated he had no interest in cutting his side yard in half. He
stated the conversation ended on a good note. He is the next-door neighbor. They also
had several conversations with the Monahan/Bolands. The first was when Ruth Ann and
Maryanne Lindner came over when the fence was started and voiced their concern and
indicated they were going to go to the Township. He advised that he had obtained a
permit and felt that what they were doing what was in the best interest of their children
and they were following the rules as they were laid out.
Mr. Goldstein asked the cost of the fence, and Mr. Vogel stated it cost $12,000 for the
entire project. Mr. Goldstein asked if he ever estimated when the Appeal was field the
possibility that there might be a problem with the fence and the cost of reducing the fence
in size to the extent of the seventy-five feet in question. Mr. Klimpl objected. Ms. Kirk
overruled. Mr. Vogel answered he has not.
Mr. Goldstein noted the pictures he took of fences in other areas. He asked if to his
knowledge there are any other fences in the Mirror Lake Farms Development that are like
his where a corner lot goes all the way to the street, and Mr. Vogel stated the fence that
Mr. Lindner took him to look at is in the seventy-five foot area. It is a fence over four
feet in size. Mr. Goldstein asked why he did not take a picture of this fence. Mr. Klimpl
objected. Mr. Goldstein withdrew the question. Mr. Goldstein asked if this is the only
fence in the neighborhood he is aware of on a corner lot, and Mr. Vogel agreed.
January 18, 2005 Zoning Hearing Board – page 19 of 22
Mr. Klimpl asked if Mr. Vogel displayed the permit in his window at the time the fence
was being constructed, and Mr. Vogel stated he did and it was in the front of the house.
Mr. Mayrhofer stated in looking at Section 200-61A for corner lots, it states a lot with
frontage on two or more streets including corner lots will have a building setback on each
street of not less than that for the front yard. He noted the Plan that was provided (A-2)
and if he draws a line from the back edge of the property and bisects where the
greater frontage on
Lane than there is on Harvest. He stated he personally has a concern as to what is the
front yard on this property.
Mr. Bamburak noted Exhibit A-2 and stated it was photocopied in black and white and
this yellow line was drawn on. Ms. Frick stated she copied it from the original so that the
Zoning Hearing Board could see where it was located. Mr. Bamburak noted in the rear
the xxx line and asked if this is where the fence was that was replaced, and Mr. Vogel
stated this was the prior fence.
Mr. Mayrhofer asked if there would have been a permit issued for the prior fence, and
Ms. Frick stated she assumes there was at the time the original building permit was
Ms. Kirk asked for further comments from the audience.
Dr. Mel Burchman,
Jockey and Dolington and he asked if they were on properties inside the development or
on main roads. Mr. Vogel sated the one on Jockey was inside a development.
Dr. Burchman asked if they were issued through a permit or a Variance, and Mr. Vogel
stated he did not know. Dr. Burchman stated if it was approved by a Variance it would
have had the support of the neighbors. Ms. Kirk stated if it was done by Variance, a
Variance is only granted by the Zoning Hearing Board and it has nothing to do with
approval of neighbors or opposition by the Township. She stated the Zoning Hearing
Board hears testimony for each case requesting a Variance. Dr. Burchman stated the
neighbors would have been notified and Ms. Kirk stated this is correct. She stated his
question was that it would be granted based on neighbors support and this is not how it
Ms. Kirk moved, Mr. Dobson seconded and it was unanimously carried to close the
testimony on this matter.
Ms. Kirk stated that rather than hearing closing arguments tonight, she would move that
the Attorneys for the Applicant and property owners submit written Findings of Fact and
Conclusions of Law to the Board within twenty days addressing each of the issues raised
January 18, 2005 Zoning Hearing Board – page 20 of 22
at the first Hearing in November, those issues being timeliness of the filing of this
Appeal, the issue as to whether or not the Zoning Hearing Board initiated a Hearing
within the sixty days since the filing of the Appeal, and the merits of the case.
Mr. Toadvine stated he feels that if they are going to request Findings of Facts and briefs
on this matter that they be submitted in time so that the Zoning Hearing Board can make
a determination before the second meeting in February. Ms. Kirk stated she asked for
briefs to be submitted in twenty days and does not want them submitted the day before
the second meeting in February. She feels twenty days would give them time to submit
them so that they could be provided to the Zoning Hearing Board in their packet for the
meeting of February 15.
Mr. Dobson seconded the Motion and the Motion carried unanimously.
Mr. Toadvine stated it is important that the issue of timeliness be addressed because the
burden of proof is on the Applicant that the Appeal was timely filed and this will be a
critical consideration to the Board before they can get to other issues.
Mr. Goldstein stated he disagrees with this. He feels the Zoning Hearing Board should
make a decision on all three of the issues. He stated here is no procedure that he is aware
of for preliminary objections on Findings of Facts. He stated they are charged with the
responsibility to interpret the Zoning Ordinance. He supposes that on the technical
determination they could, if the chose to do so, “duck the issue” of determining whether
the Ordinances were properly interpreted; but he feels it is before the Zoning Hearing
Board and has a lot of importance if not just for this case but perhaps for others.
Ms. Kirk noted Section 200-96 of the Zoning Ordinance dealing with interpretation of
Appeals which sets forth that the duties that a person aggrieved by the decision of the
Zoning Officer has the right to Appeal to this Board. She stated she believes it is a
critical issue that this Board first determine whether or not this Appeal was timely filed.
Mr. Klimpl stated at the December 7 hearing, which was continued, it was continued at
Mr. Goldstein’s request. Mr. Goldstein stated this is not the issue. Ms. Kirk stated they
opened testimony at the initial Hearing on November 3. Mr. Toadvine stated at that time
Mr. Goldstein raised the issue of whether or not the Zoning Hearing Board had failed to
hold a Hearing within sixty days of the filing of the Application. Mr. Klimpl stated he
agrees but wanted the record to reflect that the continuance was at Mr. Goldstein’s
request. Ms. Kirk stated this has nothing to do with the continuance as they opened
testimony on November 3. The request for continuance was previously made part of the
record as Exhibit B-1.
January 18, 2005 Zoning Hearing Board – page 21 of 22
Mr. Goldstein stated he understands that there will be no closing because there is no need
for a closing since the attorneys will submit Findings of Facts and Conclusions of Law to
deal with the legal arguments on all three issues. He stated he understands that the Zoning
Hearing Board will reserve the right and may very well determine if as a threshold issue
they determine that the Appeal was not timely filed, then he assumes that they will not go
to the next question. Ms. Kirk stated the Board reserves the right that if they determine
the Appeal was not timely filed, there is no need to go to the next issue.
Ms. Jean Kuhn,
about the timing. She stated she is not sure of the procedure. Ms. Kirk asked that she
raise this question to her attorney.
Appeal #04-1238 – Realen Homes, L.P. – Request for Extension
Ms. Kirk stated a letter was submitted to Allen Toadvine dated 1/12/05 from Edward
Murphy, attorney for Realen Homes L.P. regarding the Zoning Hearing Board decision of
January 20, 2004. Realen Homes has been acquired by Orleans Homebuilders and has
not been able to commence construction within the timeframe as set for in the Board’s
decision due to the outstanding issues with Bucks County Water and Sewer. She stated
the Board decided to grant the Appeal of Realen Homes L.P. for a Variance from various
sections of the Zoning Code dealing with buildings within the special resource protection
area. Mr. Wagner stated this is the Chanticleer Development.
Ms. Kirk stated Mr. Murphy is requesting that the Board consider extending the
Variances that were previously granted on 1/20/04 for a twelve month period of time due
to the outstanding issues regarding sewer planning with Bucks County Water and Sewer
Authority as well as the Pennsylvania Department of Environmental Protection.
Ms. Kirk stated she knows from experience dealing with such matters that there is a
moratorium in place as to hook ups for sewers and that moratorium does not appear to be
getting resolved in the near future. She stated this relates to the Neshaminy Interceptor
Mr. Bamburak moved and Mr. Mayrhofer seconded to grant a twelve month extension.
Motion carried with Mr. Malinowski opposed.
January 18, 2005 Zoning Hearing Board - page 22 of 22
Appeal #04-1240 –
Ms. Kirk noted the letter dated January 17, 2005 to Mr. Toadvine from Mr. Murphy
dealing with the Appeal of Centennial Commons LLP. Zoning relief was granted on
April 6, 2004. The Building Permit Application has been submitted but because the
Building Permit Application was submitted more than six months from the Board’s
decision, the Permit cannot be issued without an extension of time. Mr. Murphy is
requesting that the Variances previously granted be extended until March 15, 2005.
Ms. Kirk asked why it took them so long to submit a Permit Application, and
Mr. Toadvine stated he does not know. Ms. Kirk stated the Variance dealt with minimum
net lot area, minimum lot width, minimum rear yard setbacks, impervious surface ratio,
floodplain, and resource protection. Mr. Wagner stated this property is on
stated there were a number of revisions dealing with sewers. Ms. Kirk stated it may have
had to be revised after the DEP did their review as to the Sewer Planning Modules.
Mr. Toadvine stated many Townships do allow a year shelf life on their Variances and
Mr. Dobson moved, Mr. Mayrhofer seconded and it was unanimously carried to grant an
extension until March 15, 2005.
There being no further business, Ms. Kirk moved, Mr. Mayrhofer seconded and it was unanimously carried to adjourn the meeting at 10:25 p.m.
David Malinowski, Secretary